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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
LSM Radio Partners, L.L.C. File No: EB-08-MA-0188
Licensee of Station WWWK(FM) NAL/Acct. No.: 200932600001
Islamorada, Florida FRN: 0010245207
Facility ID # 34355
Adopted: August 2, 2010 Released: August 4, 2010
By the Regional Director, South Central Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of eight thousand five hundred dollars ($8,500) to LSM
Radio Partners, L.L.C. ("LSM Radio"), licensee of station WWWK(FM), in
Islamorada, FL for willful and repeated violation of Sections 11.35(a)
and 73.1125(a) of the Commission's Rules ("Rules"). The noted
violations involve LSM Radio's failure to maintain: (1) operational
Emergency Alert System ("EAS") equipment when station WWWK(FM) was in
operation; and (2) a full-time managerial and staff presence at the
station's main studio consistent with the Rules.
2. On February 6, 2009, in response to a complaint alleging that radio
station WWWK(FM) did not have EAS equipment installed at its main
studio, the Enforcement Bureau's Miami Office ("Miami Office") issued
a Letter of Inquiry ("LOI") to LSM Radio requesting information
regarding its EAS equipment. In a response dated March 4, 2009, LSM
Radio stated that the station did not have operational EAS equipment
installed in its main studio between May 15, 2007 and February 13,
2009. LSM Radio also stated that it repaired the station's EAS unit on
February 13, 2009.
3. On April 9, 2009, after an agent from the Miami Office had difficulty
locating the main studio for station WWWK(FM), the agent conducted a
telephone interview with the general manager ("GM") for LSM Radio. The
GM stated that station WWWK(FM) had terminated its local marketing
agreement ("LMA") with Caribbean Broadcasting, Inc. and moved out of
its previous main studio location in Homestead, FL. The GM stated that
station WWWK(FM) would generate all programming from its transmitter
site in Rock Harbor, FL. The GM stated that the transmitter site would
serve as the main studio until LSM Radio entered into a new LMA and
found a new studio location.
4. On July 7, 2009, agents from the Miami Office attempted to inspect the
main studio for station WWWK(FM) in Rock Harbor, FL during normal
business hours. The agents observed a locked fence surrounding the
perimeter of the studio building. No station staff was present at the
time of inspection and no telephone number was posted on the studio
building. The agents called the station's contract engineer, who later
met them on site, to conduct an inspection of the station's EAS
equipment. The EAS equipment was operational. However, the contract
engineer would not answer any questions regarding the regular staffing
of the main studio.
5. On August 3, 2009, an agent from the Miami Office again attempted to
inspect the main studio for station WWWK(FM) in Rock Harbor, FL during
normal business hours. The agent observed a locked fence surrounding
the perimeter of the studio building. No station staff was present at
the time of inspection and no telephone number was posted for the
6. On September 8, 2009, the Miami Office issued a Notice of Apparent
Liability for Forfeiture to LSM Radio in the amount of fifteen
thousand dollars ($15,000), for the apparent willful and repeated
violation of Sections 11.35(a) and 73.1125(a) of the Rules. LSM Radio
submitted a response to the NAL requesting reduction or cancellation
of the proposed forfeiture based on its history of compliance with the
Rules, its prompt action to repair its EAS equipment, and its
inability to pay the forfeiture. LSM Radio's response does not dispute
the violations identified in the NAL.
7. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
("Act"), Section 1.80 of the Rules, and the Commission's Forfeiture
Policy Statement. In examining LSM Radio's response, Section 503(b) of
the Act requires that the Commission take into account the nature,
circumstances, extent and gravity of the violation and, with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
require. As discussed below, we have considered LSM Radio's response
in light of these statutory factors and reduce the proposed forfeiture
to $8,500, based on LSM Radio's documented inability to pay.
8. Every broadcast station is part of the nationwide EAS network and is
categorized as a participating national EAS source unless the station
affirmatively requests authority to refrain from participation, and
that request is approved by the Commission. The EAS enables the
President and state and local governments to provide immediate and
emergency communications and information to the general public. State
and local area plans identify local primary sources responsible for
coordinating carriage of common emergency messages from sources such
as the National Weather Service or local emergency management
officials. Required monthly and weekly tests originate from EAS Local
or State Primary sources and must be retransmitted by the
participating station. As the nation's emergency warning system, the
Emergency Alert System is critical to public safety, and we recognize
the vital role that broadcasters play in ensuring its success. The
Commission takes seriously any violations of the Rules implementing
the EAS and expects full compliance from its licensees.
9. Section 11.35(a) of the Rules requires all broadcast stations to
ensure that EAS encoders, EAS decoders, and attention signal
generating and receiving equipment are installed and operational so
that the EAS monitoring and transmitting functions are available
during the times a station is in operation. LSM Radio admits that
station WWWK(FM) did not have operational EAS equipment between May
15, 2007 and February 13, 2009, and that the station was in operation
during this period. LSM Radio, nevertheless, requests cancellation or
reduction of the proposed forfeiture, because it fixed its EAS
equipment by February 13, 2009, one week after the Commission issued
the LOI. However, the Commission has long held that post-notification
corrective action taken to come into compliance with the Rules is
expected, and such corrective action does not nullify or mitigate any
prior forfeitures or violations. Thus, based on the evidence before
us, we find that LSM Radio willfully and repeatedly violated Section
11.35(a) of the Rules by failing to ensure that EAS equipment was
operational when the station was in operation between May 15, 2007 and
February 13, 2009.
10. Section 73.1125(a) of the Rules requires broadcast stations to
maintain a main studio. "A station must equip the main studio with
production and transmission facilities that meet applicable standards,
maintain continuous program transmission capability, and maintain a
meaningful management and staff presence." The Commission has defined
a minimally acceptable "meaningful presence" as full-time managerial
and full-time staff personnel. On July 7, 2009 and August 3, 2009, no
management or staff employees of station WWWK(FM) were present at the
main studio in Rock Harbor, FL during normal business hours. The
perimeter fence was locked on both days. LSM does not dispute that its
main studio was unstaffed. LSM Radio instead requests a reduction in
the amount of the proposed forfeiture, because it states that, due to
its financial situation, it was faced with either going silent or
operating an unstaffed main studio. Licensees are, however, expected
to comply with all of the rules, regardless of individual
circumstances, and may apply for waivers of the rules in the event
compliance is not possible. LSM Radio makes no claim that it applied
for or received a waiver in this instance. Thus, based on the evidence
before us, we find that LSM Radio willfully and repeatedly violated
Section 73.1125(a) of the Rules by failing to maintain a full-time
managerial and staff presence at the station's main studio on July 7,
2009 and August 3, 2009.
11. LSM Radio asserts that its record of compliance with the Commission's
rules warrants mitigation of the forfeiture. The Commission may take
into account the duration of a violation, however, in considering
whether a licensee has a history of overall compliance. Here, LSM
Radio operated without operational EAS equipment for approximately 21
months. Given the duration and seriousness of the violation, we do not
believe that LSM Radio has demonstrated a history of overall
compliance with the Commission's rules and therefore find that no
reduction of the forfeiture based on this factor is warranted.
12. Finally, LSM Radio asserts that the forfeiture would pose a financial
hardship and requests reduction or cancellation of the forfeiture on
this basis. With regard to an individual's or entity's inability to
pay, the Commission has determined that, in general, gross revenues
are the best indicator of an ability to pay a forfeiture. We have
reviewed LSM Radio's submitted documentation and conclude that the
forfeiture should be reduced to $8,500, based on its documented
inability to pay the forfeiture amount proposed in the NAL.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, LSM Radio Partners, L.L.C. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of eight thousand five
hundred dollars ($8,500) for violations of Section 11.35(a) and
73.1125(a) of the Rules.
14. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
LSM Radio shall also send electronic notification on the date said
payment is made to SCR-Response@fcc.gov.
15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class and Certified Mail Return Receipt Requested to LSM Radio at its
address of record and to its counsel, David G. O'Neil, Esq., Rini
Coran PC, 1140 19th Street NW, Suite 600, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
47 C.F.R. S:S: 11.35(a) and S: 73.1125(a).
See LOI Response at 4.
Id. at 5.
LSM Radio also stated that it would generate original programming for
WWWK(FM) from its transmitter site as of February 9, 2009. LOI Response at
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932600001
(Enf. Bur., Miami Office, September 8, 2009) ("NAL").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S:S: 11.11, 11.41.
47 C.F.R. S:S: 11.1, 11.21.
47 C.F.R. S: 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994), Rama
Communications, Inc., Memorandum Opinion and Order, 24 FCC Rcd 4981 (Enf.
Bur. 2009), Bethune-Cookman College, Inc.. Forfeiture Order, 24 FCC Rcd
4513 (South Central Region 2009), International Broadcasting Corporation,
Order on Review, 25 FCC Rcd 1538 (2010).
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991) recon. denied, 7 FCC Rcd 3454 (1992).
As provided by 47 U.S.C. S: 312(f)(2), a continuous violation is
"repeated" if it continues for more than one day. The Conference Report
for Section 312(f)(2) indicates that Congress intended to apply this
definition to Section 503 of the Act as well as Section 312. See H.R. Rep.
97th Cong. 2d Sess. 51 (1982). See Southern California Broadcasting
Company, 6 FCC Rcd 4387, 4388 (1991) and Western Wireless Corporation, 18
FCC Rcd 10319 at fn. 56 (2003).
47 C.F.R. S: 73,1125(a).
Main Studio and Program Origination Rules, Memorandum Opinion and Order,
3 FCC Rcd 5024, 5026 (1988).
Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and Order, 6
FCC Rcd 3615, 3616 (1991), clarified 7 FCC Rcd 6800 (1992).
See Claro Communications LTD, Forfeiture Order, 23 FCC Rcd 359 (South
Central Region 2008).
See Commercial Radio Service Corp., Forfeiture Order, 16 FCC Rcd 3543,
3545 (Enf. Bur. Tech. & Pub. Safety Div., 2001) (denying a reduction for a
history of overall compliance where the licensee operated eleven
specialized mobile radio stations without authorization for five months).
See TV 45 Productions, Inc., Forfeiture Order, 17 FCC Rcd 11259 (Enf. Bur.
2002) (denying a reduction for a history of overall compliance where the
licensee operated without operational EAS for one year).
See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
47 U.S.C. S: 503(b); 47 C.F.R. S:S:S: 0.111, 0.311, 1.80(f)(4), 11.35(a),
47 U.S.C. S: 504(a).
Federal Communications Commission DA 10-1442
Federal Communications Commission DA 10-1442